Hollywood Loses Again in ReplayTV Case

Another federal judge today affirmed the right of the Electronic Frontier Foundation (EFF) to represent ReplayTV owners in their lawsuit against 28 motion picture and television industry companies.

Craig Newmark of craigslist.org and four other ReplayTV customers are suing the entertainment companies to clarify their rights to record television programs and to skip commercials using digital video recorders (DVRs). Hollywood representatives have publicly stated that skipping commercials is "stealing."

The ReplayTV customers are represented by EFF attorneys and Ira Rothken of the Rothken Law Firm.

The entertainment companies have tried repeatedly to prevent EFF attorneys from accessing documents that the court ordered the companies to produce as part of the legal discovery process. EFF attorneys sought access because they believe these documents are critical to preparing the ReplayTV owners' case. The entertainment companies claimed that EFF is a "competitor" with Hollywood because of its public statements about copyright law policy. The ruling sought by the entertainment companies would have effectively disqualified EFF attorneys as legal counsel for the ReplayTV owners in this case.

In October, Magistrate Judge Eick ruled in favor of EFF pointing out that the restriction sought "would impair significantly the prosecution of the Newmark Plaintiffs' claims by effectively preventing attorneys from the Electronic Frontier Foundation from serving as litigation counsel for the Newmark Plaintiffs" and found that the entertainment companies "have failed to demonstrate a sufficiently significant disclosure-related risk or danger" from disclosure of their confidential information by EFF attorneys to justify complete denial of access.

The entertainment companies appealed this decision and U.S. District Court Judge Cooper reaffirmed today the earlier ruling in favor of EFF commenting in a written opinion that: "The Court finds factual support in the record to support the conclusion that EFF attorneys would be precluded from viewing a number of documents that are relevant to the Newmark Plaintiffs' contention that their uses of the RePlayTV DVRs constitute fair use of the Entertainment Companies' copyrighted works."

"We are pleased that the courts have twice recognized the importance of access to discovery documents in the ReplayTV case," said EFF Intellectual Property Attorney Gwen Hinze. "EFF is now committed to protecting the fair use rights of ReplayTV owners as this case moves forward."

"Public interest litigation and public advocacy groups like EFF can now breath a sigh of relief," added EFF Legal Director Cindy Cohn. "The entertainment companies were unable to set a precedent for pushing us out of cases litigated in the public interest simply for expressing our views on other matters."